1. This is a petition under Sections 435 and 439 Crl.P.C., to revise the order of the learned Sub-Collector and Executive First Class Magistrate, Pollachi in M.C. No. 9 of 1959, an application under Section 145 Cri.P.C. A dispute likely to lead to a breach of the peace was reported to have arisen between the A party comprising of two persons Giriraja Kalingarayar and Kadirvel Kalingarayar on the one hand, and the B party, Kali Thevan, on the other, in regard to the possession of lands which initially comprised of 36 acres in S. No. 166/1 of Thimmangutu Village, and 8 acres in S. No. 8/1 of Kumarapalayam village, in Pollachi taluk. Subsequent to the preliminary order, it became apparent that the dispute covered also 9 acres in S. No. 5/1 of Kumarapalayam village.
The preliminary order under Section 145(1) Cri.P.C. was passed on 27.9.1959. Both parties filed written statements in respect of their claims. As required by the amendment to Section 145(1) Cri.P.C. by Act 26 of 1955, affidavits were also filed by the rival claimants. The learned magistrate examined witnesses and then pronounced that the A party was in possession of the property on the date of the preliminary order or within two months thereof before forcible dispossession. He therefore passed an order in favour of the A party. The B party has filed the present revision. I heard the learned Counsel for the petitioner and also the learned Counsel for the respondents.
2. There is a somewhat involved prior history of the dispute. As far as I am able to gather, the gist of it is this. The disputed lands form a small portion out of about 400 acres of land within the, limits of the Uthukuli Zamindari in the occupation of a number of tenants. (It is alleged, however, that a small extent out of this was pannai land of the Zamindar, that is, lands under his personal cultivation but this matter has not yet been cleared up). In 1949, sale deeds were obtained from the tenants under which the occupancy rights in this area of 400 acres, passed to the pattagar of Palayakotta, Nallasenapathi Sarkarai Manradiar. This pattagar is the brother-in-law of the zamindar. Two brothers of the Zamindar filed O.S. No. 104 of 1954 in the Sub-Court, Coimbatore against the Zamindar for partition. Their contention was that the sale deeds in favour of the Pattagar, were bogus sale deeds, and that the lands comprised ire the 400 acres should also be made the subject matter of the partition. They impleaded the pattagar as the 12th defendant in that suit. During the pendency of the suit, a compromise was (sic) into on 4.9.1959, and two-thirds of these 400 acres, that is, 270 acres and odd were given to the A party. The compromise provided that the plaintiffs (A party)
shall immediately get into possession of the1 properties described below with all the standing crops.
that the plaintiffs (A party) shall be entitled to and realise the past rents and profits from out of the lands described below in the schedule from the tenants of the 12th defendant for the period between 1.4.1958 to this date, i.e., 30.8.1959.
The schedule of property appended to the. compromise decree, includes the three survey numbers now in dispute. The contention of the A party is that in pursuance of the compromise, decree they entered into peaceful possession of 270 acres on 5.9.1959 and that on the night of 5.9.1959 the B party without proper basis lodged a criminal complaint of trespass against the A party. A police sub-inspector with a posse of Armed police then visited the locality, and found that a case of criminal trespass could not be made out, but the matter could be suitably taken up for action under Section 145 Crl.P.C.
3. The case of the B party was this. In View of the impending tenancy legislation, bogus transfers were obtained of some of the lands by taking sale deeds in favour of the pattagar of Palayakottai from tenants at the instance of the zamindar, who was the brother-in-law of the pattagar. The sale deeds were repudiated by notice sent by the B party on 5.1.1959, Kali Tevan got a specific extent under lease, out of the lands covered by the sale deeds. Other tenants have obtained similar leases. In this way, Kali Tevan claimed Ac. 22.54 cents under a lease from the pattagar in S. No. 166/1. This 22.54 acres is not included in the dispute, nor is the extent of Ac. 8-50 on base to Ramaswami Konar and Nanja Tevar in dispute. However, there were some other persons who executed sale deeds in 1949. The pattagar granted them leases for one year. Subsequently, on the expiry of the lease they continued to cultivate the lands. Kali Tevan obtained surrenders from them, and cultivated the lands himself. These constitute the disputed lands.
4. The case of the A party is that (on entering into the lands on 5.9.1959), they got the same rights of possession as the pattagar of Palayakottai had, before that date. So, it is necessary to determine what was the nature of the right of possession which the pattagar of Palayakottai enjoyed in the lands before 5.9.1959. His case apparently was that while the, major portion of the 400 acres had been given on leases, he had the particular items of land now in dispute, under his own personal Cultivation for a long time prior to the dispute, and that he was having them cultivated by lured labour or even by using the services of the lessees of adjacent lands. He had admittedly no other lands in this locality. His place of residence is over 60 miles away. Accounts for the personal cultivation were not kept by the pattagar, but were kept by the, zamindar of Uthukuli, his brother-in-law. It is alleged that these accounts could not be produced, because the zamindar of Uthukuli has now become inimical to the pattagar and is disputing the allegation about the pattagar's personal cultivation and because is supporting the ease of cultivation by tenants.
5. In deciding this somewhat involved dispute, the learned Sub-Collector and Executive First class magistrate proceeded on the basis that conflicting statements were made by Kali Thevan his evidence as to the circumstances under which lie obtained surrender deeds from the other persons, who had formerly cultivated the disputed lands, but had conveyed them by sale deeds in the year 1949 to the pattagar. The learned Magistrate found Kali Thevan's evidence on the point discrepant and contradictory. He could not produce any documentary evidence of the surrender. The learned Advocate for the petitioner points out that the evidence adduced on behalf of the A party to prove that the disputed lands were under the personal cultivation of the pattagar of Palayakottai, has serious defects. Thus, it was pointed out that while he had leased out practically the entire bulk of this 400 acres to tenants, there was no particular reason why he should cultivate the disputed lands of about 52 acres, and odd, through hired labour, especially when he was living 60 miles away and when the lands were situated in a zamindari where he had no other lands at all under his personal cultivation.
It was also pointed out that it was surprising that he kept no accounts himself of this alleged personal cultivation, but allowed his brother-in-law, the zamindar of Uthukuli, to maintain them and that this zamindar who gave evidence as C.W. 4 stated that even when the lands were transferred by the pattagar, they were Cultivated only by tenants, that the pattagar never cultivated them personally and that the lands were throughout under the occupation of tenants. He had no accounts for the alleged personal cultivation of the disputed lands. As against this, it was pointed out that the zamindar had now fallen out with the pattagar and so he gave the above evidence. The point on which the greatest stress was laid by the learned Counsel for the petitioner was that the lower court foiled to give proper weight to the affidavits filed in the case, though he was bound to do so under the Statute. In particular, he referred to the affidavits of the village headman and the karnam of the village. They have sworn to the fact that the B party viz. Kali Thevan, was in possession of the disputed lands and had raised crops thereon on the relevant date. He pointed Out that nowhere an his order did the Sub-Collector and First class Magistrate advert to these important affidavits and give his finding as to why they could not be accepted. It is no doubt true that he has considered the evidence and affidavits of some other ryots from the locality, but more weight should have been given, it is pointed out, to the affidavits of responsible persons like the village^ headman and the karnam.
6. Sitting as a court in revision, and in particular because of the order which I propose to pass in this petition, I do not propose to make any comment at this stage on the relative value to be apportioned to the evidence on either side, or to make any comment on the appreciation of the evidence by the court below. After a careful consideration of the arguments on both sides, and after perusing the records, I find that the order of the lower court is defective, because it has not discussed the value to be assigned to the affidavits filed in the case, and in particular to the affidavits of the village officers above referred to. The learned Counsel appearing for the petitioner points out that the amendment to Section 145 of the Criminal Procedure Code by Act 26 of 1955, gives statutory recognition to evidence by affidavits in a proceeding of this kind.
He referred me to the decision in Rudra Singh v. Bimk Debi : AIR1960Pat505 , where it is observed that Magistrates should consider affidavits in the same way as the oral evidence is considered, and they should give reasons for rejecting the statements made in the affidavits. While it may not be proper to lay down any general rule for guidance in regard to the consideration of affidavits, it may be safe to state that where the order of the magistrate has not discussed the effect of the affidavits, especially the affidavits of important persons in the locality acquainted with the state of affairs, like the village headman and the karnam, the order could be considered as one not properly passed and requires to be set aside in revision. In view of the foregoing considerations, I set aside the order of the lower court and remand the case to be disposed of afresh in accordance with law.